Saturday, March 31, 2012

In which I prove that I am a hopeless appellate geek

Final Four Saturday is the longest day of the year. Well, it is if your team is playing. Especially if your team is playing in the late game. (Missouri fans will just have to take my word for it. Yes, I will take that crack at Mizzou fans every chance I get.)

I have already walked downtown (where the streets are packed with people in KU gear). I got my coffee. Did my shopping. Grabbed some lunch. And now I still have about 6 hours to go until my freakin' game starts.

So I've turned on Dateline Real Life Mysteries on TLC, the kind of show I turn to when I'm super bored and antsy. Which brings me to the actual subject of this post. Every time I watch one of these shows and they show a portion of the prosecution's closing argument, I realize this is one area of the criminal law where we've got it pretty good in Kansas. Because most of the clips of argument I see on these shows involve comments that would not be tolerated in a Kansas court. Here in Kansas, you can't call the defendant a liar and you can't call him evil and you can't say justice demands a guilty verdict.

Now, of course, some prosecutors still say things like this. Except the liar part. I think we've pretty well got that message across. That other stuff might still sometimes be said, though. But this appellate attorney knows that if that stuff does get said, I've got a pretty good issue on appeal. It always makes me wonder when I watch these shows, then, what the appellate courts in the state where that trial took place will think of that argument that would be deemed misconduct in my state. And I wonder how many of these guilty verdicts these shows tell us about get overturned on appeal. I have even been known to try to look up those cases on westlaw and find out what happened on appeal.

Yes, I really do wonder about these things and I really do research the cases I see on tv marathons, thereby providing further proof that I am an appellate geek. And that I really need tip time to get here already.

Wednesday, March 28, 2012

I can barely move right  now. For some reason, my trainer decided to burn out every major muscle group this week.

I'm still coughing incessantly, thank you very much bronchitis. (Seriously, who gets the flu and ends up with bronchitis? This girl!) I tried to warm up for my training session this evening by walking on the treadmill. When I tried to bump the speed up over 3.5, know what happened? Hacking cough.

And yet somehow, I'm supposed to run a 5 mile stretch of a major relay race on Sunday. I hope I'm the last leg because I think I might take a while...

Sunday, March 25, 2012

Rock Chalk

It really doesn't get much better than heading into the final weekend of the college basketball season with your team still playing.

Mizzou fans, you'll just have to take my word for it. ;)

Saturday, March 24, 2012


I think it's really important that I never start a twitter account. Really, really important.

Because Twitter is like Ground Zero for illogical, unfactual statements on the internet. Getting me involved in Twitter would be like giving a drug addict a lifetime supply. Twitter is where my "something is wrong on the internet-"itis would once and for all take over and push me permanently and irrevocably over the edge. Because once I got started responding to some of the stuff I've seen, I don't think I would ever be able to stop. And new stuff just keeps coming every moment.

I must stay away. Far, far away.

Thursday, March 22, 2012

My Trayvon Martin take

I'm sure you've all been on tenterhooks waiting for me to blog about Trayvon Martin. I actually first heard about the case before I went on vacation, but decided to wait on commenting. I thought I might actually blog about it while on vacation (ha!). Then I figured I would get a blog post up right away when I got back, but the evil ick got me so the extent of my exertion the past two days has been moving from the couch to the bed and back. Plus, I wanted to make sure I had done my research and knew what I was talking about before wading in.

17 year-old Trayvon Martin was walking back to his father's girlfriend's house in a gated community in Florida. He was black and wearing a hoodie sweatshirt, with the hood up. It was after dark. George Zimmerman, in his mid to late 20s, was sitting in his car volunteering as a neighborhood watchman. He had a loaded gun. He called 911 upon seeing Martin walking through the neighborhood and "looking suspicious." According to Zimmerman, it was clear this kid was on drugs or something. No evidence has been presented to support that assertion.

Zimmerman got out of his car, against the advice of the 911 dispatcher, and followed Martin. There was a scuffle. Someone called out for help. Then there was a gunshot. Martin was dead on the sidewalk and Zimmerman, some weeks later, has yet to be arrested.

The police have responded to the national outcry by insisting that they were "prohibited" from arresting Zimmerman by Florida's "Stand your ground" law that immunizes anyone who uses deadly force in self-defense.

Having read the statutes, having listened to the 911 tapes, having read the articles, I can now officially say what my gut reaction was in the first place: I call BS on the cops who refuse to arrest Zimmerman. There is absolutely nothing in the Florida law that in any way, shape, or form "prohibits" the police from arresting this guy. There is nothing in the law that says an armed man can confront a teenager on a street, stalk the kid, force a confrontation, and then shoot him and that the police will subsequently be powerless to so much as question his version of events.

Here is the section of the statute that relates to the use of deadly force by a person not in his/her dwelling:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.  Fl. Stat. 776.013

There is no presumption in favor of the shooter in that section. There is no statement that the shooter's version of events is to be believed unless strong evidence rebuts it. All this statute presents is a defense that is a factual question for a jury to decide. Did the shooter reasonably believe the force was necessary? Pretty standard self-defense, really. Just because this particular statute removes the duty to retreat element doesn't mean the statute doesn't still operate as a defense to be presented to a jury.
But there is another statute in the chapter that goes more to why the police claim they couldn't arrest Zimmerman. Under Fl. Stat. 776.032, a person who uses force as permitted in 776.013 is immune from prosecution. (Prosecution includes arrest and detention.) So this is why the Sanford, FL police don't think they can arrest or charge Zimmerman? Because:
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful. Fl. Stat. 776.032.

Ok. So the police need to establish probable cause that the force was unlawful. Probable cause is a pretty low standard and is pretty much what's necessary for any arrest. Probable cause is something that might be met here by showing that Zimmerman initiated contact with Martin (he's the one who got out of his car and pursued the kid). And by showing that someone was yelling out for help, a yelling that ended with the gunshot, which tends to support the idea that it was Martin who was yelling for help. Or by the words of a 911 caller who described there having been "something" on top of Martin, presumably Zimmerman.
There's also this tidbit in Florida statutes:
 776.041 Use of force by aggressor.The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

So the police could easily find probable cause (a low threshold) to find Zimmerman's use of force was unlawful. Or they could point to 776.041 and argue that Zimmerman was the initial aggressor, as he was the armed man who chased an unarmed teenager down the street. That fact is clear from Zimmerman's own 911 call. But there is nothing in these statutes that the police can credibly point to that "prohibits" an arrest and a charge in this case.
But isn't that what we all pretty much knew? This isn't a case of police hands being tied by outrageously pro-shooter laws. This isn't a case of a poorly-written statute justifying behavior that feels criminal to lay people. Not at all. This is a case of police taking the word of the grown, armed man who slaughtered an unarmed teenager on a sidewalk. 

And this is what ultimately gets me about this case. What got me about it the first time I heard about it. No client of mine has ever gotten this kind of benefit of the doubt from the police. No client of mine has ever had his version of events so accepted as gospel truth, especially in light of 911 tapes that suggest otherwise. Even with a statute that says a person who acts in self-defense is immune from prosecution. Unless it's super clear-cut that it was self-defense (like the woman asleep in bed, in her pajamas, who hits the armed intruder over the head with a lamp and lucks into killing him), the cases get charged. They at least go to a judge as fact-finder. They don't just stop at the police. The police don't just take the shooter's word for it.
So here's what really happened in this case: A wanna-be cop, neighborhood watch guy saw a black kid in a hoodie and assumed that he was up to no good. He was tired of these no good punks (or other words...) getting away with it. He pursued the kid. When the kid wound up dead, the police who responded didn't much care because they secretly agree with Zimmerman that they're tired of seeing these guys get away with it. (Even though Martin wasn't getting away with anything but skittles, which he'd paid for.) So they were gonna let Zimmerman get away with it. Until Martin's family got the public to take notice. And now that the national outcry has gotten back to Sanford, the police are hiding behind a statute that does not in any way say what they need it to say to justify their lack of action. Because they don't want anyone (possibly including themselves) to think about the racial and class implications of their decision to trust George Zimmerman.
Under Florida law, George Zimmerman can be arrested and charged for his actions. The case can be presented to a fact-finder for a determination of whether his actions really were justified. It is absolutely criminal that the Sanford police department has thus far been unwilling to take this case to a court of law, but would instead cover it up and keep it from seeing the light of day.
There are so many other issues this case touches on that might explain why the police are so willing to forego charging Zimmerman. But I'm still very tired and fuzzy-headed and can't get into that all now. For tonight, I'll stop at exposing the lie behind their feeble claim that the law "prohibits" the charge. It doesn't.

I'm really pretty effin' furious right about now.

Throwing the orange squeaky ball to the silliest dog around helped a little. But not much.

Monday, March 19, 2012

My week off

Where have I been, right? I know you're all wondering. Well, I was on vacation. A vacation that allows me to cross something off my bucket list. Because I was in Arizona. Surprise, to be specific. Spring training home of the one, the only, Kansas City Royals.

Baseball has always been a thing with my friends. Before I even met my best friend, my freshman year roommate at college, I knew we'd get along because in her introductory letter to me, she mentioned her love of the Mets. (If she'd said Yankees, we might have had a problem...) Our boys liked baseball, too. We always tried to go to games. My senior year of college, we even went on a minor little baseball tour. Milwaukee and Chicago. An easy drive and we had a free place to stay.

So it made total sense that we would dream of spring training. And then somehow back in December, on another vacation, we hatched a plan. Which is how I found myself spending last week watching 4 games in 4 different stadiums over 3 days with my two best guys. Now, don't get any ideas. One is my best friend's hubby (I was maid of honor). And the other has been with another old friend of mine since I introduced them a year and a half hour ago.

The rundown:

First up was the Brewers (BF's hubby grew up outside Milwaukee). Their stadium was nice with interesting food options and great beer. (I'm easy. They had Summer Shandy, so I was hooked.) The Brewers didn't win, but since they were playing the Mariner's (guy 2 is from Seattle), someone still won.

Then we had the double-header day. First, the Brewers at the Cubs. As you might guess, the Cubs stadium was older, more, umm, lived-in. Lower rent. They had the most yard space to sit on blankets in (a nod to Wrigleyville?). And they had a lovely bar in the outfield. Where I had a 24 ounce can of Corona, because it seemed the thing to do. And because there wasn't much of a beer selection. I believe the Brewers won that game, but honestly, there was some beer involved, even if it wasn't the greatest.

Later that night we saw the Royals (finally!) play at the Mariners. Definitely a great food selection and better beer (Summer Shandy again!). And I liked the atmosphere. Probably because we sat so close to the Royals dugout, I could have talked to any of the players. In fact, I am fairly certain that Alex Gordon and Jeff Francouer heard the discussion I had with a fellow fan about which one of us got which player. (I got Frenchie, just as I wanted.) But the game didn't end well. From my perspective, anyway.

We took Thursday off. The guys went hiking while I watched basketball. And Seattle guy's gal (aka my high school friend) showed up that night. So I finally had someone to sit with me in the back seat of the car.

Then Friday we finally, finally!, got to Surprise. And just because I'm biased, doesn't mean I'm wrong when I say it was the best stadium. It had a bouncy house! And lots of areas in the outfield to stand at umbrella tables or sit at picnic tables while still watching the game. And, yay! My Royals beat the Brewers! (Can you tell the Brewers fan picked the games? Technically, it was his birthday celebration...)

Of course, you know I'm not all baseball. You know I love my basketball. My KU basketball, to be specific. So Friday night, I made my friends (I mean, they volunteered...) go to the sports bar in the Phoenix area where the KU alumni association hosts a watch party. Happily, the Hawks won fairly handily, the pomegranate martinis were tasty, and I paid, so my friends were not too put out.

But the highlight of the trip? Oddly, it just might be the flight home. Or rather, the KU 2nd round tourney game (sorry, NCAA, but everyone knows it's the 2nd, not 3rd, round) that was scheduled to start boarding about half an hour after tip. So none of the KU fans huddled around the tv at the gate area, conveniently turned to the right channel, minded all that much when the flight was delayed half an hour. At least we would get to watch the whole first half and see KU get out to a comfortable lead. But they were down by 6, instead. And then we really did have to board.

So all the KU fans took to their phones and "watched" the score update on gamecasts. Some phones ran out of battery, so those of us who still had juice started giving updates out loud. We were all dreading the moment when we would hear that we had to turn our phones off, but it just didn't come.  Someone had the KU radio announcers playing, so I could hear Bob Davis when EJ hit the 3 that finally gave us a lead at the end. But then the guy who had the fastest connection (I think he was on the phone with someone) finally just started relaying the updates out loud. He was definitely faster than my phone, though I still didn't quite believe his proclamation that we'd won until my phone showed it was a final.

And then, the reason for the delay became clear when a pilot walked onto the plane and announced we were ready for take-off. So the pilot was a KU fan and couldn't bear to leave until the game was over. For which I thank him, because that would have been a LONG flight if we'd had to shut off our phones before the final whistle.

And this is really what you need to know about Sarah. A life-long dream is fulfilled with two of her bestest friends ever. And all she really wants to talk about is watching a silly basketball game at the airport. Sounds about right. I may have been at spring training, but there's no escaping the madness of March.

Rock Chalk.

And, oh yeah, let's go Royals.

Friday, March 9, 2012

Warner Herzog, documentary filmmaker, has made a 4 part series for the Investigation Discovery channel called "On Death Row." (Unlike the New York Times review of the show, I will keep snide comments about the network to myself.)

I just had to share this quote from Herzog as relayed in the NYT review. While talking to a prosecutor about a particular defendant, Herzog says this:

"I do not humanize her. I do not make an attempt to humanize her. She is simply a human being, period."

Mr. Herzog, I think I love you.

- Posted using BlogPress from my iPad

Location:Can I get an amen?

Wednesday, March 7, 2012

Colleague down

I'm generally kind of a fan of social media. I'll go to twitter when I want to get a sense for what people are saying on a particular topic. I read the comment boards on news sites.

And I love my Facebook. For good reason, I might add. Facebook has reconnected me with many people from previous periods in my life who I thought I would never hear from again. I have made FB friends through mutual friends, people I probably wouldn't have met in real life. Likewise, friends of mine have gotten to know other friends of mine. Also, thanks to Facebook, two of my nearest and dearest have now been together for about a year and a half.

But the downside is this: sometimes, you find out way too much about people. Like when you realize that colleague who you thought you respected, liked, maybe even admired, is in fact a total prick. I wouldn't ever use that word myself, but this person uses it ALL THE TIME about anyone whose politics s/he disagrees with. Those politics are also not at all what I would agree with, so it's kind of like this former respected colleague is calling me a prick half the time. So the posts are all things I disagree with and written in such an awful, disparaging, disrespectful tone, often involving nothing more than mere name-calling. There is no pretense of civil discourse. And it's often just downright mean. Ugh.

Much like with Kirk Cameron, our relationship was much better before I knew the truth about this person.

Tuesday, March 6, 2012

Oh great googily moogily, there has got to be more to life than this. If I don't find it soon, I am going to lose my ever lovin' mind!

- Posted using BlogPress from my iPad

Sunday, March 4, 2012

Teen idol down

I would like to apologize for ever having had a picture of Kirk Cameron hanging on my bedroom wall. I think it is clear for readers of this blog, and I know it's clear to those of you who know me in person, that I would never in any way condone comments like the ones he made to Piers Morgan, calling homosexuality "destructive to so many of the foundations of civilization." Seriously, what does that even mean, anyway? How much time do we now spend studying ancient Greek society? And homosexuality was pretty darn prominent in that culture. So I guess jury trials, the marathon, and the Olympics can withstand homosexuality... Oh, yeah, and democracy.

Anyway, I officially take back my adolescent crush on Kirk Cameron. But to be fair, I was only 13 at the time. And he wasn't yet making inflammatory comments like this.

Saturday, March 3, 2012


I'm pretty sure I just saw the national collegiate basketball player of the year play. I'm also pretty sure it was also his last ever game at the greatest venue in all of sports. Ok, all of college sports. (See, I can be reasonable and objective about my Jayhawks.)

If Thomas Robinson does not win a national player of the year award or two, I will be seriously put out.

Thursday, March 1, 2012

Overcharge much?

In Alabama, a grandmother made her 9 year-old granddaughter run for three hours, while holding weights and without water. This was to punish the girl for eating chocolate, which she wasn't supposed to eat because of a medical condition. The girl died and while officially autopsy results are still pending, dehydration seems a pretty likely cause of death. Despite being a bleeding heart liberal defense attorney, I don't object to this woman being prosecuted. For child abuse. Maybe child endangerment. Maybe even some kind of involuntary manslaughter. I know what Kansas charges might fit, but I don't know the ins and outs of Alabama state law, so I'll defer to those prosecutors when they decide to charge her with...

capital murder???


I'm almost at a loss for words. But, of course, with me that never lasts very long. Though I do have to say one more "WTF?" before moving into my rant. Is this prosecutor serious? Is this prosecutor seriously interested in pursuing the death penalty here? Is this prosecutor seriously interested in expending hundreds of thousands of dollars on all of the things that go along with a capital murder charge? The jury questionnaires and lengthy jury selection. The longer trial. The mitigation investigation the defense has to do. Is this prosecutor seriously wanting to take this case down that road?

And how is something like this possibly capital murder anyway? I'm used to thinking of capital murder being a case of intentional killing. That's what's required in Kansas. But under Alabama statutes, it sure looks like a person could face the death penalty for recklessly causing someone's death "under circumstances manifesting extreme indifference to human life." Wow. Again, I don't really know what to say to that. Seems a tad over the top to execute a grandmother for overzealous punishment. Yes, it was way, way overzealous. Mean. Awful. Cruel. Criminal, even. But punishable by death? It's unfathomable to me that people think that way. I hope I will never understand that level of bloodlust.

Surely this case won't really proceed as a death penalty case. Surely this is just bravado by the prosecutor right now. Surely reason will prevail. Right?
Blog Designed by : NW Designs